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Jagdish Raj Kohli Vs. Lekh Raj Suri and Sons - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtJammu and Kashmir High Court
Decided On
Case NumberCivil Revn. No. 141 of 1980
Judge
ActsJammu and Kashmir Code of Civil Procedure (CPC) , 1977 Smvt - Sections 144 and 151 - Order 41, Rule 5; ;Code of Civil Procedure (CPC) , 1908 - Sections 47, 144 and 151
AppellantJagdish Raj Kohli
RespondentLekh Raj Suri and Sons
Appellant Advocate K.N. Raina,; K.N. Bhat and; M.S.A. Farooqi, Advs.
Respondent Advocate R.N. Kaul, Adv.
DispositionRevision allowed
Cases ReferredKaku Singh v. Gobind Singh
Excerpt:
- .....decree, the court executing the decree passed an order on the very same day that possession of the suit shop be handed over to the decree holder. a direction was issued to the nazir to go on spot and hand over vacant possession of the suit shop to the decree-holder. on 5-11-1980, the nazir reported that it was not possible for him to eject the defendant judgment-debtor without police assistance. the court issued a direction to the police to provide necessary assistance to the nazir in executing the decree. the nazir, assisted by the police, it appears, went on the spot on 8-11-1980. he found the shop locked. the lock was broken open and inventory of the goods lying in it was also prepared. possession of the vacant shop was thereafter handed over to the plaintiff decree-holder.3. an.....
Judgment:
ORDER

I.K. Kotwal, J.

1. The short question, thatfalls for determination in this revision petition is: Can an appellate court byway of interim relief restore possession of the suit property to the defendant appellant who has been evicted therefrom in execution of a decree passed against him by the trial court, on mere filing of the appeal against the said de- cree, in exercise of its inherent powers under Section 151, C.P.C.?

2. The revision petitioner before me is the plaintiff in whose favour a decree was passed by the trial court of I Addl. Munsiff Srinagar on 27-10-80, ejecting the defendant from a shop leased out to him. Execution of the aforesaid decree was taken out by the petitioner on 4-11-1980. Execution application having been made within a period of one year from the date of the decree, the court executing the decree passed an order on the very same day that possession of the suit shop be handed over to the decree holder. A direction was issued to the Nazir to go on spot and hand over vacant possession of the suit shop to the decree-holder. On 5-11-1980, the Nazir reported that it was not possible for him to eject the defendant judgment-debtor without police assistance. The court issued a direction to the police to provide necessary assistance to the Nazir in executing the decree. The Nazir, assisted by the police, it appears, went on the spot on 8-11-1980. He found the shop locked. The lock was broken open and inventory of the goods lying in it was also prepared. Possession of the vacant shop was thereafter handed over to the plaintiff decree-holder.

3. An appeal from the aforesaid decree was taken by the defendant, the respondent herein, to District Judge Srinagar on 13-11-1980. On the same date, an application was also moved on behalf of the appellant that since neither the trial court nor the Nazir had been fair in executing the decree and handing over the possession of the suit shop to the decree-holder, the appellate court should restore status quo ante and put back appellant in possession of the suit shop till the final disposal of the appeal. The learned District Judge, without issuing any notice to the decree-holder, granted the aforesaid prayer and directed the Nazir of the court to restore back the lost possession of the suit shop to the appellant The operative portion of his order reads thus:--

'The circumstances of this matter are so grave that it will reflect upon the functioning of the court if we do not give immediate relief and also direct a probe against the delinquent staff. Theappellant has suffered by act of the court and as the rules of fair play require nobody should suffer or be injured by the act of the court, I find prima facie there is good reason for allowing the ad interim relief, as prayed for by the appellant, and accordingly I order that the appellant shall be restored to the original position which existed prior to the execution of the decree and the Nazir Tameelat along with the same police who delivered the possession to the decree-holder shall now return the possession to the appellant and make compliance report within two days, This order shall, however, be subject to any other order which may be passed after the opposite party is heard in the stay matter. Regarding the articles seized from the shop, the appellant shall take recourse to law. Put up the application on 17th of November, 1980'.

On the very same day, the petitioner challenged the aforesaid order before this court through the present revision petition. An application was simultaneously made for staying the order passed by the learned District Judge. Since a copy of the impugned order had not been attached with the memo of the revision petition, the learned Judge before whom the revision petition was placed for admission directed the same to be placed for its admission on 18-11-1980, and further directed that the order of dispossession of the petitioner passed by the District Judge shall not be carried out till then. The revision petition was eventually admitted on 18-11-1980 and the earlier order staying dispossession of tha petitioner was made absolute.

4. It is common ground that the decree from which the respondent herein had taken appeal to District Judge, Sri-nagar, had been executed by the court passing the same five days earlier to the date of filing of the appeal, and the decree-holder, the petitioner herein, put in vacant possession of the suit shop. Mr, P. N. Kaul, learned counsel for the respondent, has frankly conceded, and in my opinion rightly so, that no stay for execution of the decree appealed against could have been granted by the District Judge under Order 41, Rule 5, C.P.C., after the decree had been executed and the decree-holder put in possession of the suit shop. He has, however, tried to support the order of the learned District Judge by arguing that the latter in exercise of his inherent powers under Sec-tion 151, C.P.C., was competent to putback the respondent judgment-debtor in possession of the shop by way of restitution, even if the case was not strictly covered by the provisions of Section 144, C.P.C. At this stage, it becomes necessary to notice the provisions of Section 144. The section reads as under:--

'144. (1) Where and in so far as a decree is varied or reversed, the court of first instance shall, on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree or such part thereof as has been varied or reversed; and, for this purpose, the court may make any orders, including orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits, which are properly consequential on such varia-tion or reversal.

(2) No suit shall be instituted for tha purpose of obtaining any restitution or other relief which could be obtained by application under Sub-section (1).' Restitution according to this section, means restoring to a party what has been lost to it in execution of a decree which has been subsequently varied or reversed. Strictly speaking, no order for restitution shall be made under this section, unless the decree as a consequence whereof the loss has occasioned to the party seeking restitution, has been later on varied or reversed. And, the other fundamental requirement of this section is that restitution under it can be ordered by the court of first instance only, and not by a court of appeal or revision, varying, or reversing the said decree (Kashi Prasad Singh v. Balbhaddar Singh, AIR 1922 All 71).

5. Courts have, however, taken the view that this section is not so exhaustive as to include every such case in which restitution may be necessary to meet the requirements of Justice. They have, therefore, held that restitution may be ordered ex-debito justitiae, even if the case does not strictly fall within the four corners of Section 144. In this view, it has been held that every court has inherent power to rectify its own mistake, and order restitution in favour of a person, who has been wrongly deprived of his property on account of its mistaken order on the principle actus curiae neminem gravabit, that is, act of court shall prejudice none. Similarly, restitution bythe court in exercise of its inherent powers has been held to be valid, where a party has placed himself in an advantageous position by ignoring the order of the court granting restitution, or the order of the court superior to it, so as to relegate the parties to the same position, which they would have occupied had such order not been ignored. The view, that apart from the specific provisions of Section 144, a court has power to order restitution in those cases also which do not strictly fall within its purview, is based upon the principle that it is inherent in the general jurisdiction of the court to act rightly and fairly towards the parties or the persons involved, as the circumstances of the case may warrant. While dealing with the nature and extent of these powers, their Lordships in Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal, AIR 1962 SC 527 observed as under (para 23):--

'The section itself says that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the court to make orders necessary for the ends of justice. In the face of such a clear statement, it is not possible to hold that the provisions of the Code control the inherent power by limiting it or otherwise affecting it. The inherent power has not been conferred upon the court; it is a power inherent in the court by virtue of its duty to do justice between the parties before it,'

6. Nevertheless, inherent powers of the court which have been preserved under Section 151 are not unbridled or unfettered, but have certain well recog-nized constraints attached to them. No court can exercise its inherent power when there is a clear bar against such exercise contained in the Code or any other provisions of law. Nor can such power be exercised by a court, when there is a specific provision in the Coda under which it can give adequate and appropriate relief to the aggrieved party. When a court auction-purchaser, for instance, fails to make deposit in accordance with Order 21, Rule 85, C.P.C., the court cannot in exercise of its inherent powers give him relief against forfeiture of deposit as provided in Order 21, Rule 86 (Manilal Mohanlal v. Sayed Ahmad, AIR 1954 SC 349). Similarly, the court cannot extend the period of limitation on the grounds of equity and justice (Ranglal v. Munjaji, AIR 1956 Hyd 29 and Krishna-swami v. Chengalroya, AIR 1924 Mad 114). Likewise, an order for security ofcosts for which a specific provision is contained in Order 25, Rule 1, C.P.C. cannot be made by the court in exercise of its inherent powers (Arumugam Chettiar (minor) v. K. R. S. Sevugan Chettiar, AIR 1950 Mad 779. Also see Muhammad Ka-ssim Abdul Sathar Sait v. Hajee Rahiman Hajee Ismail, AIR 1950 Trav-Co 100 (FB)).

7. Viewed thus, the impugned order is vitiated by a number of legal infirmities. To begin with, an order passed under Section 47, C.P.C, being appealable as a decree under the Code, the learned District Judge ought not to have hastened to take recourse to his inherent powers to undo the execution of the decree and dispossess the decree-holder from the suit shop, even if the execution proceedings, in his opinion, were bad in law. In such a case, it was open to the respondent judgment-debtor to have preferred an execution appeal to the learned District Judge and then approached the trial court for restitution, in case his appeal was allowed and the order of trial court executing the decree varied or reversed. Had such an appeal been filed by him then, there can be no manner of doubt, that the appellate court could have given him the appropriate relief and undone the injustice, if any, done to him, Secondly, no order ex debito justitiae, in any case, should have been passed by the learned District Judge restoring status quo ante, without hearing the petitioner decree-holder, in whose favour a very valuable right had accrued as a consequence of the decree and its execution. Putting in possession of the suit shop in execution of a decree in invitum could not by any stretch of logic be said to have caused such injustice to the judgment-debtor, as would attract the rule actus curiae neminem gravabits assuming for the moment that execution of the decree had been carried out in an irregular manner. Thirdly, the learned District Judge was seized of the appeal against the ejectment decree itself, He should have waited till he had varied or reversed the decree and then left the judgment-debtor to approach the trial court for restitution. He obviously committed an error in ordering restitution without varying or reversing the decree as a consequence whereof the decree-holder was put in possession of the suit shop. Not only that, he played a role which in fact, ought to have been played by the court of first instance, for restitution could have been ordered by the court of firstinstance alone, even if it was to do so in exercise of its inherent powers.

8. None of the authorities relied upon by Mr. Kaul is direct in point. In Maharaja Sasikanta Acharjee v. Jalil Baksh Munshi, AIR 1931 Cal 779 (2), the appellant had purchased a jote in execution of a rent decree obtained by him against the respondents and got its possession persuant thereto. This sale had been later on set aside under Order 21, Rule 92 on the ground of material irregularity. The respondents had got back possession of the jote through restitution. It was in these circumstances, held that the decree in execution whereof the appellant had obtained possession of the jote, not having been varied or reversed, its restitution in favour of the respondents could not be said to have been made under Section 144 but under Section 151. This case was decided under Sub-section (1) of Section 144 before it was amended by Act No. 66 of 1956 and the words 'or an order' inserted in it. Similarly, in Subash Chander v. Bodh Raj, AIR 1'969 J & K 8, restitution of the shop in favour of the respondent had been ordered, which admittedly was not the subject matter of the suit in which the decree for ejectment had been passed in favour of the petitioner. In ordering restitution the court had applied the rule actus curiae nemi-nem gravabit. The same rule, in almost similar circumstances, was applied in Gangadhar v. Raghubar Dayal, AIR 1975 All 102 (FB). Equally distinguishable is the other authority, namely, Kaku Singh v. Gobind Singh, AIR 1959 Punj 468. In this case restitution of the plots of land of which actual physical possession had been given to the decree-holder in execution of the decree had been, ordered, after the High Court had issued an order staying delivery of its possession to him. In none of these cases the appellate or revisional court had ordered restitution in exercise of its inherent powers, either before setting aside the execution proceedings or the decree, pursuant to which the decree-holder had been put in possession of the suit property. Furthermore, restitution in all these cases had been ordered by the court of first instance itself and not by the superior court. Judged from any angle, therefore, the order passed by the learned District Judge is clearly indefensible.

9. In the result, the petition is allow-with cost and the impugned ordered by the District Judge is set aside.The decree-holder shall be at liberty to move the trial court for restitution of the suit shop. The District Judge shall try to dispose of the appeal as expeditiously as possible. Parties are directed to appear before him on 21-9-1981.


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